The parties to the Kenya post election violence cases may not call up witnesses during the confirmation of charges hearings even as the Pre-Trial Chamber shelved holding them in Kenya.
The decision was reached by the International Criminal Court Pre-Trial Chamber Judge Ekaterina Trendafilova on Wednesday.
“The Single Judge, however, wishes to inform the parties and the applicant victims that the Chamber, for its part, being respectful of their wishes as expressed in the respective submissions, will not consider further the option of conducting the confirmation of charges hearing in the Republic of Kenya,” said judge Trendafilova.
“In any event, absent any decision to the contrary (by the president), the confirmation of charges hearing in the present case will take place at the seat of the Court in The Hague.”
The judge told the parties to the Kenyan case that although oral testimony is permitted, the evidentiary debate at the confirmation of charges hearing can be based on witnesses’ written statements.
“The Single Judge expects the parties to rely on live witnesses only as far as their oral testimony at the hearing cannot be properly substituted by documentary evidence or witnesses’ written statements,” said Judge Trendafilova.
The judge has thus ordered the Prosecutor and the Defence teams to indicate by July 12, whether they intend to call live witnesses at the hearing and, if so, to submit information “detailing the subject matter and the scope of the proposed testimony of each witness.”
“The Single Judge wishes to inform the parties that, should they fail to communicate their intention to call witnesses by the deadline hereby established, it will not be possible to finalise the necessary arrangements before the confirmation of charges hearing,” the judge said.
She noted that Article 68(5) of the Rome Statute and rule 81(6) of the court permit that both the Prosecutor and the Defence submit only a summary of evidence with a view to preventing disclosure of information that might put at risk witnesses or members of their families.
She added that not allowing live witnesses would allow the confirmation of charges hearing to be conducted in a “more expeditious manner”.
A the same time, the Pre-Trial Chamber also rejected the government’s request for assistance with evidence held by the court arguing that Kenya submitted a two-page Cooperation Request, which lacked any documentary proof that there is or has been an investigation against the Ocampo Six.
The confirmation of charges hearings are to be held on September 1 for Eldoret North MP William Ruto, radio presenter Joshua Sang and Tinderet MP Henry Kosgey, and on September 21 for Deputy Prime Minister Uhuru Kenyatta, head of civil service Francis Muthaura and Postmaster General Hussein Ali.
A confirmation of charges hearing is held to determine if there is sufficient evidence to believe a suspect committed the crimes he is charged with. If the charges are confirmed, the Pre-Trial Chamber commits the person to a Trial Chamber, which conducts the next phase of the proceedings – the trial.